FEDERAL COURT OF AUSTRALIA

Hinchcliffe v Commissioner of Police of the Australian Federal Police [2001] FCA 1747

ADMINISTRATIVE LAW – judicial review – applicants’ alleged publication by their former spouses of proceedings in Family Court in contravention of s 121 of the Family Law Act 1975 – decision by Australian Federal Police (“AFP”) not to proceed with complaint – whether failure by AFP to perform duty – whether complaint constituted a sufficient request to support an application for mandamus – whether AFP had a policy not to investigate such complaints – whether grant of relief would, in any event, be futile since no offence against s 121

POLICE – duty of AFP to enforce the law – duty of AFP where a complaint is received from a member of the public

FAMILY LAW – prohibition on publication of proceedings – prohibition not infringed by use of materials in another Family Court proceeding – allegation that statements contained in the materials were repeated to applicants’ associates – whether statements were an “account” of the proceeding – whether applicants’ associates constituted the public or a section of the public

WORDS & PHRASES – “account of any proceedings”, “the public or ... a section of the public”

Family Law Act 1975 (Cth), s 121(1), s 121(9)(a)

Australian Federal Police Act 1979 (Cth), s 8, s 9(1)(c), s 37

Police Regulations Act 1958 (Vic), s 11

Federal Court Rules, O 20, r 2(1)

R v Commissioner of Police of the Metropolis; Ex parte Blackburn [1968] 2 QB 118 followed

R v Commissioner of Police of the Metropolis, Ex parte Blackburn (No 3) [1973] 1 QB 241 referred

R v Chief Constable of Devon and Cornwall; Ex parte Central Electricity Generating Board [1982] 1 QB 458 referred

R v McAulay; Ex parte Fardell (1979) 2 NTR 22 referred

King-Brooks v Roberts (1991) 5 WAR 500 referred

Smiles v Commissioner of Taxation (1992) 35 FCR 405 referred

R v The War Pensions Entitlement Appeal Tribunal; Ex parte Bott (1933) 50 CLR 228 applied

Re Edelsten; Ex parte Donnelly (1988) 18 FCR 434 followed

Corporate Affairs Commission (South Australia) v Australian Central Credit Union (1985) 157 CLR 201 discussed

Walton v Gardiner (1993) 177 CLR 378 referred

AMANDA JOY HINCHCLIFFE & ANOR v THE COMMISSIONER OF POLICE OF THE AUSTRALIAN FEDERAL POLICE & ANOR

V 78 of 2000

KENNY J

10 DECEMBER 2001

MELBOURNE

THE COURT ORDERS THAT:

1.                  The proceeding, commenced in the High Court of Australia on 22 November 1999 and remitted to this Court by order on 18 February 2000, be dismissed pursuant to O 20, r 2(1) of the Federal Court Rules.

2.                  Mr and Mrs Hinchcliffe pay the respondents’ costs of the proceeding, including any reserved costs and the costs of and incidental to the motion, notice of which was dated 17 May 2000.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

the application

1                     On 22 November 1999, Amanda Joy Hinchcliffe and John William Hinchcliffe filed an application in the High Court of Australia for writs of prohibition and mandamus directed to the Director of Public Prosecutions (“the DPP”), members of the staff of the Office of the DPP, the Attorney-General, an officer of the Attorney-General’s Department, and members of the Australian Federal Police (“the AFP”).  On 18 February 2000, pursuant to s 44(2A) of the Judiciary Act 1903 (Cth), the High Court remitted the matter to this Court.

2                     On 22 November 1999, Mr and Mrs Hinchcliffe each made an affidavit in support of their application.  According to their affidavits, they have both been involved in proceedings in the Family Court of Australia (“the Family Court”).  In Family Court proceedings to which Mr Hinchcliffe was a party (“the John Hinchcliffe proceedings”), his former wife, Ms Cheryl Anne Walker, made allegations against him, including allegations about his treatment of the children of Mrs Amanda Hinchcliffe and her former husband, Mr Brenton Foale.  In Family Court proceedings to which Mrs Hinchcliffe was a party (“the Amanda Hinchcliffe proceedings”), Mr Foale filed affidavits that repeated these allegations.  Ms Walker and Mr Foale have, it seems, told Mr and Mrs Hinchcliffe that Ms Walker gave Mr Foale access to the documents used in the John Hinchcliffe proceedings.  The Hinchcliffes have also discovered that their former spouses have repeated the allegations to people with whom they associate.  The Hinchcliffes’ application stems from their unsuccessful attempts to deal with these matters. 

3                     Around the end of April 2000, Mr and Mrs Hinchcliffe filed an application in this Court pursuant to O 4, r 1 of the Federal Court Rules (“the Rules”) and a statement of claim.  By motion, notice of which was dated 17 May 2000, the then respondents sought an order that the proceeding be dismissed pursuant to O 20, r 2 of the Rules.  They relied on each of the grounds for which O 20, r 2 provides.  Mr G W McDonald, solicitor for the respondents, affirmed an affidavit on 18 May 2000 in support of the motion. 

4                     On 6 June 2000, Mr and Mrs Hinchcliffe were given leave to file an amended application and amended statement of claim.  By motion, notice of which was dated 19 June 2000, they subsequently applied for orders that:

1.      The applicants have leave to discontinue this proceeding as against all respondents other than Peter Curry.

2.      The Commissioner of the Australian Federal Police be added as a respondent.

3.      The applicants have leave to amend their application by filing an application in the form of the draft amended application which is exhibit ‘JWH-1’ to the affidavit of John William Hinchcliffe sworn on 19 June 2000. 

4.      The applicants have leave to amend their statement of claim by filing a statement of claim in the form of the draft amended statement of claim which is exhibit ‘JWH-2’ to the affidavit of John William Hinchcliffe sworn on 19 June 2000.

5.      Such further or other orders as the Court considers appropriate.

On 19 June 2000 Mr Hinchcliffe made an affidavit in support of this motion.  As the terms of the motion indicated, a draft amended application and a draft amended statement of claim were exhibited to it. 

5                     The respondents did not oppose Mr and Mrs Hinchcliffe’s motion at the hearing on 2 May 2001, subject to the payment of the costs of those parties against whom the proceeding was discontinued.  Accordingly, on that day, I made the orders sought by the Hinchcliffes, together with an order that they pay the costs of the respondents against whom the proceeding was discontinued.  The parties agreed that I should hear and determine the respondents’ strike out motion, notice of which was dated 17 May 2000, by reference to the amended application and amended statement of claim.

6                     In addition to Mr McDonald’s affidavit of 18 May 2000, the respondents also relied on an affidavit affirmed by Mr McDonald on 7 August 2000 and an affidavit sworn by Federal Agent Phillip Francis on 26 April 2001.  In opposing the respondents’ motion, the Hinchcliffes relied on their affidavits sworn on 22 November 1999 and on an affidavit sworn by Mr Hinchcliffe on 25 January 2001.  The parties filed written submissions on 1 May 2001. 

the pleadings

7                     In their amended application, the Hinchcliffes seek relief against the Commissioner of Police of the AFP (“the Commissioner”) and a member of the AFP (Peter Curry) in the following terms:

1.         An order directing that writ of mandamus issue out of this Court directed to the respondents and each of them requiring him:

(a)                to make or cause an investigation to be made according to law of the matters the subject matter of the applicants’ complaint dated 28 April 1999; and

(b)        to consider and determine according to law whether or not any  person should be prosecuted for any offence disclosed by that investigation.

2.         Such further or other orders as the nature of the case may require.

3.                  Costs.

8                     The Hinchcliffes’ amended statement of claim consists of six paragraphs.  Omitting particulars, it reads as follows:

1.         On or about 28 April 1999 the applicants made a written complaint (‘the complaint’) to the second-named respondent, in his capacity as a member of the Australian Federal Police, in which they alleged that an account of part of proceedings under the Family Law Act 1975 (‘FLA’) identifying the second-named applicant as a party to the proceedings had been disseminated to a section of the public in contravention of section 121 of FLA.

2.                  Each of the respondents is under a duty to uphold and enforce the laws of the Commonwealth.

3.                  Upon receipt of and by reason of the complaint the respondents and each of them came under a duty to the applicants:

(a)               to make or to cause to be made an investigation of the matters of which the applicants complained; and

(b)               to give consideration to whether or not any person should be prosecuted for any offence disclosed by that investigation.

4.                  On or about 1 October 1999, prior to any or any sufficient investigation of the matters the subject of the complaint, the respondents alternatively the first respondent by their delegate or agent informed the applicants that the Australian Federal Police would not be taking any further action in relation to the allegation.

5.                  In refusing to take further action on the matters the subject of the complaint the respondents:

(a)               gave effect to a policy or practice of the Australian Federal Police not to investigate or prosecute complaints made by litigants in family law proceedings alleging contravention of section 121 of FLA;

(b)               acted on a wrong construction of section 121 of FLA, or alternatively a construction that was not reasonably open to them without further investigation of the matters the subject of the complaint.

6.                  By the complaint the applicants requested the respondents and each of them to perform the duties referred to in paragraph 2 and or alternatively paragraph 3 which in the premises each of the respondents has refused or neglected to do.

the complaint

9                     The complaint referred to in par 1 of the amended statement of claim was a letter dated 28 April 1999 written by Mr and Mrs Hinchcliffe to Mr Curry.  The letter read:

Re:       Publication of Family Court of Australia File No ML3479 of 1994

by Cheryl Anne Walker, Ms Sharon Johns, Brenton Wayne Foale and others.

Following the telephone background information which you requested, and also following the instructions given to us by the Federal Attorney General’s Family Law Section and also the Melbourne office of the Commonwealth Director of Public Prosecutions, please find below the basic information as requested. 

In December 1996, documents and affidavits were served on Amanda from her former husband, Mr Brenton Wayne Foale, which contained a large number of fabrications and lies about John which had been transposed from the Affidavits contained in the above mentioned file to the File No ML11573 of 1996 – Foale/Munro (now Hinchcliffe). 

This has been confirmed by Brenton Wayne Foale, when he boasted to Amanda on the 29^th January 1997, that he had been given full access to the file by Cheryl Anne Walker, Sharon Johns and others. 

Cheryl Anne Walker has also boasted to John that she had told Brenton Foale that he could have whatever he liked, and gave her former Solicitor, Sharon Johns permission to give Brenton Foale whatever he wanted. 

On 18^th March 1999, Amanda witnessed and overheard Cheryl Anne Walker and Sharon Johns colluding at the Family Court of Australia to deny Publication. 

The purpose of Publication of these documents was by design of Cheryl Anne Walker, Sharon Johns, Brenton Wayne Foale and others to pervert the course of Justice in the Family Court of Australia, so as to ensure that Custody/Residency of the children of … Amanda and her former husband (Brenton Wayne Foale), would be awarded to Brenton Foale.

Publication of the file was illegal, as there has never been a Publication Order issued by the Family Court of Australia.

When we originally approached the Australian Federal Police, to complain, we were told that we would have to take action ourselves, as the AFP did not investigate such matters. 

On application to have the matter heard in the Family Court of Australia, Justice Mushin stated that the entire responsibility for prosecution lies with the AFP/Attorney General’s Department and the Commonwealth DPP. 

We have both suffered … extremely as a result of these actions, as the Affidavit material published has never been tested in the Family Court of Australia, and Cheryl Anne Walker, Sharon Johns and Brenton Foale have made many knowingly false statements to many people with whom we associate. 

Also we have been refused assistance by the AFP, when we have approached them previously as John has been denied his lawful access/contact now for over two and a half years and Amanda for nearly as long. 

On instruction and advice of the Attorney General’s Department and the Commonwealth Department of Public Prosecutions, we request a reply in writing.

background to the complaint

10                  The circumstances which led Mr and Mrs Hinchcliffe to write this letter are set out in their 22 November 1999 affidavits. 

11                  Mrs Hinchcliffe deposed that:

My husband and I have repeatedly made requests to the Australian Federal Police since late 1996, to investigate the unlawful publication of my husband’s Family Court of Australia File No ML 3479 of 1994, in breach of Section 121 of the Family Law Act 1975, through telephone and facsimile communications. 

My husband’s former wife has willingly conspired with my former husband to publish false allegations contained in Family Court of Australia File No ML 3479 of 1994 to unlawfully gain Residency/Custody of the children of my former marriage, and has continually made untruthful statements to my friends and associates contained in that file, as well as other false statements contained in my Family Court of Australia File No ML 11573 of 1996.

My former husband boasted to me on the 29^th January, 1997, at a changeover for our children, that he had met with my husband’s former wife and her solicitor separately on several occasions, and that he had been provided with all the material that he requested, and that he intended to use all of the information solely to benefit his case regardless of the consequences.

…

On several occasions friends of mine had rung me to tell me of the lies and false allegations which [my former husband] was spreading around about both my husband and I, and how he was going to abuse the Family Court of Australia system, with the assistance of family, friends and solicitors.

Despite our repeated requests, the Australian Federal Police and the Commonwealth Director of Public Prosecutions have issued a deemed refusal to comply with the authorisation of the Federal Attorney General’s Department, to commence a full and thorough investigation into these breaches of Section 121 of the Family Law Act 1975, thereby refusing to perform their duties as Officers of the Crown, and therefore acting in a manner so as to pervert the course of justice, and assist the offenders by refusing to bring them to justice, as is their sworn oath of office. 

When we offered to supply the names and addresses of the witnesses of the indictable offences committed by my former husband and my husband’s former wife, to the Federal Agent whom we met at the Family Court of Australia building, he refused to accept them saying that they were not interested in anything apart from printed matter.

…

The situation is so blatant that my husband’s former wife and her former solicitor (whom is now a barrister) were discussing how they could deny any involvement in the breaches of Section 121 of the Family Law Act 1975, whilst standing only 2 to 3 metres away from me in the foyer of the Family Court at Melbourne in March this year.

12                  In his 22 November 1999 affidavit, Mr Hinchcliffe deposed that he had raised “our concerns of the unlawful publication of my Family Court of Australia File No. ML 3479 of 1994” in November 1998, when he telephoned an officer of the Attorney-General’s Department in Melbourne; that he had unsuccessfully raised the matter in the Family Court on 18 March 1999 and on 6 May 1999; and that he had written to the Attorney-General by letter dated 19 March 1999. 

13                  He also stated:

My former wife, boasted to me in late 1996, that she and her solicitor had given complete and unrestricted access to our Family Court of Australia File No. ML 3479 of 1994 to my new wife’s former husband so that she could prevent me having any access/contact with the children of my previous marriage.

…

Other people have stated to me that my former wife and my new wife’s former husband have regularly spoken of the contents of my Family Court of Australia File No. ML 3479 of 1994 and also my new wife’s Family Court of Australia File No. ML 11573 of 1996, of which neither files have had any final hearings before the Family Court of Australia, therefore, the matters contained in them are based on unproven and unsubstantiated allegations, by bitter former spouses ….

…

The Australian Federal Police and its Federal Agents have refused to carry out a full and unbiased investigation and prosecution, through their refusal to comply with Section 121(1), (2) and (3)(a) of the Family Law Act 1975, and their refusal to speak to a number of witnesses to the breaches of Section 121(1), (2) and (3)(a) of the Family Law Act 1975.

The only information accepted by the Australian Federal Police and its Agents were copies of a few sections from the Family Court of Australia, File Nos. ML 3479 of 1994 and ML 11573 of 1996.

The Australian Federal Police have refused to accept a list of witnesses to whom untried and untested allegations by the Family Court of Australia or any other court, from Family Court of Australia File No. ML 3479 of 1994 and File No. ML 11573 of 1996 had been disseminated too, even though they have been offered the information on several occasions, by both of us.

14                  Mr Hinchcliffe’s letter of 19 March 1999 to the Attorney-General (referred to above) set out his efforts to raise his “extreme concerns over the Publication of my Family Court of Australia file No. ML 3479 of 1994, by my former wife and her former solicitor”.  An officer of the Attorney-General’s Department responded by letter dated 31 March 1999 (also exhibited to Mr Hinchcliffe’s affidavit) stating:

I am not able to provide legal advice to individual members of the public.  However, I can offer the following general information. 

Section 121 of the Family Law Act 1975 (‘the Act’) provides that a person who publishes material that identifies parties to the proceedings is guilty of an offence.   Proceedings for such an offence can only be commenced by the Attorney-General or with his written consent. 

The Attorney-General does not commence proceedings on behalf of individual litigants.  The Attorney-General has authorised the Commonwealth Director of Public Prosecution to give his consent.  If you wish to seek the Attorney-General’s consent to commence proceedings, you might be advised to provide the information that you have about the alleged breach of section 121 of the Act, together with any evidence that you have in support of your allegation, to the Commonwealth Director of Public Prosecution.

action on the complaint

15                  According to Mr McDonald’s affidavit of 7 August 2000 (which is not relevantly contested), Mr Curry received a telephone call from one of the Hinchcliffes some time before 28 April 1999 in the course of which Mr Curry advised them to write a letter to the AFP outlining their complaint.  It seems that Mr Curry has had no further involvement with the Hinchcliffes.

16                  On 7 May 1999, another member of the AFP wrote to Mr Hinchcliffe advising him of the AFP’s receipt of his letter of 28 April 1999 and requesting that he provide original documents for evaluation.  The letter also stated that, when the original documents were received, the AFP would consult with the DPP. 

17                  On 12 May 1999, the Hinchcliffes wrote a letter to the Deputy Registry Manager, Family Court, Melbourne Registry, stating that the Attorney-General’s Family Law Section had directed them to the DPP who had in turn requested the AFP to investigate their matter.  The letter requested the Family Court to release to the AFP the documents on the relevant court files for investigation.  On 18 May 1999, the Deputy Registry Manager, Family Court wrote to the Hinchcliffes advising them that the AFP was permitted access to the files, as they requested.

18                  On 25 May 1999, the Hinchcliffes replied to the AFP’s letter of 7 May 1999, stating that they were not prepared to provide original documents since “we would leave ourselves open to prosecution” and noting that they had gone to considerable trouble to provide the AFP with access to original documents at the Family Court.

19                  On 27 May 1999, Federal Agent Phillip Francis attended the Family Court with the Hinchcliffes and obtained copies of documents that the Hinchcliffes identified as relevant to their complaint.

20                  On 8 June 1999, the AFP wrote to the DPP requesting advice as to whether an offence had been committed pursuant to s 121 of the Family Law Act 1975 (“the Act”).  The letter enclosed copies of the documents identified by the Hinchcliffes.  The letter stated in part:

Mr and Mrs Hinchcliffe marked the documents for the AFP.  Mr Hinchcliffe states that the abovementioned documents contain sections of the file [ML 3479 of 1994] that have been unlawfully published contrary to Section 121 of the Family Law Act 1975.  Allegations are raised about both Hinchcliffes’ ex partners and the solicitor representing Cheryl Walker. 

From examination of the documents, it is not apparent to this office the exact nature of the offence alleged, particularly when considering the definition of publication under the Family Law Act.  It would be appreciated if you could appoint an officer to determine whether or not, in their opinion, an offence contrary to Section 121 of the Family Law Act 1975 has been committed.  Should it be believed that offences have been committed, your advice is sought as to whether or not, given the circumstances, it is appropriate to obtain consent for consideration of investigating the matter.

21                  On 29 September 1999, Mr Mark Pedley, Deputy DPP, wrote a letter of advice to the AFP (consisting of six pages).  Amongst other things, the letter stated:

1.       Mr John and Mrs Amanda Hinchcliffe have made a complaint to the Australian Federal Police alleging the unlawful publication of material from a Family Court file.  …  The Family Court file from which it is alleged information was obtained and published was from file ML 3479 of 1994 which was a proceeding between John Hinchcliffe and his former wife Cheryl Anne Walker (formerly Hinchcliffe). 

2.       Mr and Mrs Hinchcliffe alleged that John Hinchcliffe’s former wife, Cheryl Anne Walker and her then solicitor gave access to material filed in Family Court file ML 3479 to Brenton Wayne Foale.  Mr Foale is Amanda Hinchcliffe’s former husband.  It is further alleged that Mr Foale used the material in Family Court proceedings between himself and his former wife (Amanda Hinchcliffe).  From the papers it appears that the proceedings brought by Mr Foale related to the custody and residence of the children of the marriage. 

…

4.      You have sought my advice on the question of whether an offence of publishing an account of a proceeding or part of a proceeding contrary to section 121 of the Family Law Act 1975 has been committed.

5.      You have not investigated the allegation nor prepared a brief of evidence.  Given this my advice is based on the material you have provided.  This material is Mr and Mrs Hinchcliffe’s letter of complaint dated 28 April 1999, extracts from documents filed by Mr Hinchcliffe’s former wife Cheryl Anne Walker in Family Court proceeding ML 3479 of 1994 and a copy of the affidavit of Brenton Wayne Foale filed on 13 December 1996 in Family Court proceeding ML 11573 of 1996. 

…

14.     I do not consider there has been a breach of section 121 in the present matter.  There is no breach of section 121 even if it could be established that Mr Hinchcliffe’s former wife Cheryl Anne Walker provided a copy of some material, which had been filed in the Family Court proceeding ML 3479, to Brenton Wayne Foale resulting in him repeating the same or very similar material in his affidavit in another proceeding.

…

17.     In addition, I do not consider the material in the affidavit of Mr Foale is an account of the proceedings between Mr Hinchcliffe and his former wife Cheryl Anne Walker.  I say this as the extracts I have do not even refer to the proceedings number ML3479 of 1994.  Rather, Mr Foale’s affidavit includes information not about the Family Court proceedings between Mr Hinchcliffe and his former wife but information about Mr Hinchcliffe, Mr Hinchcliffe’s relationship with his former wife, their children and foster child.  It also includes information about Mr Hinchcliffe’s alleged criminal history.

…

20.         Mr and Mrs Hinchcliffe’s letter of complaint also alleges that the material contained in Mr Foale’s affidavit, and in Cheryl Anne Walker’s affidavit, contains lies and fabrications about Mr Hinchcliffe and so was designed to pervert the course of the justice. 

21.         There is no material provided by you which goes to the question of whether the statements in the two affidavits are true or false.  As a result I am not able to express a view on this allegation.

22.         So to summarise, I do not consider that even if it could be established that Cheryl Anne Walker gave access to material filed in Family Court proceeding ML 3479 to Brenton Wayne Foale that this would contravene section 121 of the Act as I do not regard this to amount to a publication/dissemination of this material to the public or a section of the public.  Secondly, I do not consider the material contained in Mr Foale’s affidavit is an account of the proceedings between Mr and the former Mrs Hinchcliffe.  Thirdly, I do not consider that Mr Foale’s repetition of allegations made in the earlier Family Court proceedings by Cheryl Anne Walker, would amount to an offence against section 121 of the Act by reason of paragraph 121(9)(a) of the Act.

22                  On 1 October 1999, a member of the AFP wrote to Mr Hinchcliffe, informing him that the DPP had advised that “the allegations made do not amount to publication/dissemination of the material to the public or a section of the public as is required by the Act”.  The letter added:

In light of the recommendation made by DPP and the absence of any further information, the AFP will not be taking any further action in relation to your allegation at this time. 

As you will appreciate, the AFP has to ensure that its limited resources are directed to matters of the highest priority and all decisions are carefully considered.  In making this decision, the AFP has considered the nature of the alleged crime, the impact of criminality involved and the resources required.

23                  On 1 November 1999, Mr Hinchcliffe sent a letter by facsimile to the Attorney-General in which he asserted that the AFP had refused properly to investigate a significant breach of s 121 of the Act; and that Mr Hinchcliffe intended to institute proceedings against the Attorney-General and others in the High Court.  Mr Hinchcliffe alleged, amongst other things, that there had been a refusal “to accept all evidence and also a list of witnesses of the breaches, or interview them at all”. 

24                  In relation to this list of witnesses, Mr Hinchcliffe subsequently deposed, in his affidavit of 25 January 2001, that:

We tried to make it clear in our complaint to the federal police … that we were concerned that information and allegations which must have had their source in the family court documents had become widely known amongst persons with whom my wife and I associated. 

When my wife and I attended the Family Court on 27 May 1999 to meet Federal Agent Francis … we offered to provide to Federal Agent Francis a written list of witnesses, to whom we are aware that statements had been made to by Cheryl Walker and Brenton Foale, and who were also prepared to be interviewed and appear in court if necessary.

Agent Francis refused to accept our list saying that he had been instructed … that there would not be any investigation, and/or interviewing of witnesses, and that only documentation would be accepted.

25                  Federal Agent Francis denied part of Mr Hinchcliffe’s account of this conversation, deposing in an affidavit sworn 26 April 2001, that:

Whilst attending the Court Mr Hinchcliffe advised that he had further witnesses.  I do not recall Mr Hinchcliffe’s exact words but he did state that he would send the names and addresses of these witnesses to the Australian Federal Police.  Having made inquiries with [my supervisor] to the best of my knowledge the Australian Federal Police did not receive the list of witnesses’ names and addresses. 

… I strongly deny refusing to accept a written list of witnesses from Mr Hinchcliffe. 

I further deny that I advised Mr Hinchcliffe that [my supervisor and Federal Agent Curry] had instructed me that there would be no investigation and/or interviewing of witnesses and that only documentation would be accepted, or that [they] so did instruct me.

For the purposes of the respondents’ strike out motion, the parties did not call upon the court to resolve any differences of fact between Mr Hinchcliffe’s version of the conversation and the account given by Mr Francis. 

the parties’ submissions

26                  In support of their motion, the respondents made submissions in the following terms:

(1)               They were not, as Mr and Mrs Hinchcliffe alleged, under any duty to make an investigation of their complaint of 28 April 1999 or to consider whether any person should be prosecuted for any offence disclosed by the complaint.

(2)               In any event, members of the AFP investigated the matters the subject of the complaint.

(3)               The complaint and investigation revealed no basis for charging any person with an offence.

For these reasons, so the respondents submitted, the application brought by the Hinchcliffes was bound to fail and should, therefore, be dismissed pursuant to O 20, r 2 of the Rules. 

27                  In response, counsel for Mr and Mrs Hinchcliffe contended that a refusal by the AFP to consider a bona fide complaint constituted a refusal to perform the AFP’s duty; and that the AFP had not given “any consideration at all to whether it was a contravention of s 121 for Foale and/or Walker to disseminate amongst friends and associates of the Hinchcliffes and others information derived from documents filed in the Family Court made available to them (if that was what occurred)”.  Counsel for the Hinchcliffes further submitted that there was sufficient shown in the evidence of Mr Hinchcliffe to indicate that the AFP had adopted a policy of not investigating alleged breaches of s 121 of the Act; and that if this were established as fact at trial, then the Hinchcliffes would be entitled to the relief they sought.

duty of australian federal police officers

28                  The case that Mr and Mrs Hinchcliffe seek to make by their amended statement of claim must fail at the outset if, in law, there is no duty as alleged in paragraph 3 of their pleading.

29                  The parties agreed that, on this issue, the law in Australia was substantially the same as that stated by Denning MR in R v Commissioner of Police of the Metropolis; Ex parte Blackburn [1968] 2 QB 118 (“Blackburn”).  As counsel for Mr and Mrs Hinchcliffe pointed out, however, the starting point in this case in connection with the respondents’ duty was different from that in Blackburn.

30                  The Australian Federal Police Act 1979 (“the AFP Act”) contains no general statement of the duties of the Commissioner or of members of the AFP.  The Act refers to the duties and powers of the Commissioner and members in only the most general terms. 

31                  Subsection 37(1) of the AFP Act commits “the general administration of, and the control of the operations of” the AFP to the Commissioner.  The functions of the AFP are set out in s 8, and include the “provision of police services” in relation to the laws of the Commonwealth and anything incidental thereto:  see s 8(1)(b)(i) and also s 8(1)(c).  There is a non-exhaustive definition of the expression “police services” in s 4 of the AFP Act.  I accept that, as counsel for the Hinchcliffes contended, the functions of the AFP include the prevention of crimes and associated activities, such as the investigation of complaints about the commission of crimes with a view to the identification of offenders.  I also accept that, generally speaking, the Commissioner must act so as to facilitate the performance by the AFP of its statutory functions.

32                  Whilst s 9 of the AFP Act provides for the powers and duties of members, it does not define them exhaustively.  Pursuant to s 9(1)(c) a member has, in relation to the laws of the Commonwealth, the same powers and duties that are conferred on a constable, etcetera, in the place where he or she is acting.  In Victoria, s 11 of the Police Regulation Act 1958 (Vic) provides that “[e]very constable shall have such powers and privileges and be liable to all such duties as any constable … may have either by the common law or by virtue of any Act of Parliament …”. 

33                  It is customary for Parliament and the courts to describe police powers and duties in only the most general terms:  cf DPP’s Reference 1993 (ACT) (1993) 71 A Crim R 115 at 119.  For example, in the seminal case of Blackburn, the English Court of Appeal held that the duty owed at law by the Commissioner of Police of the Metropolis was a duty “to enforce the law of the land”:  see [1968] 2 QB at 136 and 138.  The Court of Appeal held that, although mandamus could lie to compel the performance of the duty, the Commissioner had a very large discretion as to the manner in which the duty was performed.  In an oft-cited passage, the Master of the Rolls said at 136:

Although the chief officers of police are answerable to the law, there are many fields in which they have a discretion with which the law will not interfere.  For instance, it is for the Commissioner of Police of the Metropolis, or the chief constable, as the case may be, to decide in any particular case whether inquiries should be pursued, or whether an arrest should be made, or a prosecution brought.  It must be for him to decide on the disposition of his force and the concentration of his resources on any particular crime or area.  No court can or should give him direction on such a matter.  He can also make policy decisions and give effect to them, as, for instance, was often done when prosecutions were not brought for attempted suicide.  But there are some policy decisions with which, I think, the courts in a case can, if necessary, interfere.  Suppose a chief constable were to issue a directive to his men that no person should be prosecuted for stealing any goods less than £100 in value.  I should have thought that the court could countermand it.  He would be failing in his duty to enforce the law.

See also Salmon LJ at 139; and R v Commissioner of Police of the Metropolis; Ex parte Blackburn (No 3) [1973] 1 QB 241 at 254, 258 and 262.

34                  Some years later, the English Court of Appeal again confirmed the breadth of the police discretion.  In R v Chief Constable of Devon and Cornwall; Ex parte Central Electricity Generating Board [1982] 1 QB 458, the Master of the Rolls reiterated, at 472, that:

It is of the first importance that the police should decide on their own responsibility what action should be taken in any particular situation.

See also Lawton LJ at 474-477 and Templeman LJ at 480-481.

35                  Australian courts too have accepted that whilst a commissioner of police has a duty to enforce the law, he or she also has a broad discretion as to the manner in which he or she chooses to fulfil the responsibilities of office: see, for example, R v McAulay; Ex parte Fardell (1979) 2 NTR 22 at 29; King-Brooks v Roberts (1991) 5 WAR 500 at 518-519; and compare Smiles v Commissioner of Taxation (1992) 35 FCR 405 at 408; affmd (1992) 37 FCR 558.  The authorities do not support the proposition that the respondents owed a duty of the kind pleaded by Mr and Mrs Hinchcliffe in their amended statement of claim (i.e., a duty to investigate their complaint and to consider whether any person should be prosecuted in consequence of such investigation).  As the respondents’ counsel noted, there can be no duty to consider prosecution if there is no duty to undertake an investigation. 

36                  At the hearing of the respondents’ motion, counsel for Mr and Mrs Hinchcliffe did not really attempt to support the existence of a duty of the kind formulated in the amended statement of claim.  Rather, he submitted:

a refusal by police to receive a bona fide complaint, or the refusal to consider it, is a failure to perform their duty which is capable of attracting intervention of the Court. 

37                  I accept that, where a member of the AFP receives a complaint from a member of the public, the member discharges his or her duty to enforce the law if:

(1)               he or she gives due and proper consideration to the question whether and in what way an initial inquiry into the complaint should be made; and

(2)               he or she acts appropriately upon the view which he or she has formed. 

A range of matters may be pertinent to the member’s consideration of the complaint, depending on the circumstances.

38                  Substantially accepting this formulation of the law, counsel for the Hinchcliffes submitted that there was sufficient material before the Court to withstand the strike-out motion and to support the proposition that there had been no real performance of the respondents’ legal duty.  Whilst this was not as pleaded in the amended statement of claim, I consider the case on this reformulated basis.

the afp’s response to the complaint

39                  The parties agreed that the second, third and fourth paragraphs of the complaint (i.e. the letter of 28 April 1999) directed the AFP’s attention to the disclosure in the Amanda Hinchcliffe proceedings of the contents of affidavits and other documents filed in the John Hinchcliffe proceedings.  Save perhaps for the tenth paragraph, the rest of the complaint concerned matters ancillary to this alleged unlawful disclosure.  The Hinchcliffes and the respondents disputed the significance of the allegation in the tenth paragraph, that Ms Walker, her solicitor and Mr Foale “made many knowingly false statements to many people with whom we associate”. 

40                  In written submissions, counsel for Mr and Mrs Hinchcliffe stated:

Not explicitly, but by a fair process of inference, this can be taken to refer to the untested allegations referred to in the same paragraph and to the ‘fabrications and lies’ which are referred to in paragraph 2.

For present purposes, I accept this submission.  I also accept, as the text of the complaint shows, that the gravamen of the Hinchcliffes’ complaint was Ms Walker’s disclosure of documents filed in the John Hinchcliffe proceedings to Mr Foale, who used the information that he thus acquired in the Amanda Hinchcliffe proceedings. 

41                  Consistently with its conduct and with its letters of 8 June 1999 to the DPP and 1 October 1999 to Mr Hinchcliffe, the AFP apparently took the same view of the complaint.  In keeping with this, Federal Agent Francis attended the Family Court with Mr and Mrs Hinchcliffe to take copies of documents on the Court’s file.  In the letter of advice of 29 September 1999, the DPP confirmed that it too read the complaint in this way.  I accept that, if the AFP is taken to have appreciated the complaint correctly, then there is no basis shown to support an allegation that the APF did not give due consideration to the complaint, including by seeking out relevant documentation and referring the matter to the DPP for advice.

42                  It may be true, as counsel for the Hinchcliffes contended, that neither the AFP nor the DPP considered whether Ms Walker and Mr Foale might have breached s 121 by telling the Hinchcliffes’ associates matters that were in documents on the relevant court files.  If so, the failure does not betoken a failure to fulfil a duty, the performance of which may be compelled by mandamus.  This is because the terms of the complaint made it clear enough that the relevant allegation in paragraph 10 was subordinate to the crux of the complaint.  The terms of the complaint indicate that this allegation was included to support the Hinchcliffes’ claim of injury from the disclosure by Ms Walker to Mr Foale of documents in the John Hinchcliffe proceedings.  Relevantly, paragraph 10 indicated the extent of that injury by asserting that the “fabrications and lies” made in the John Hinchcliffe proceedings were being repeated outside the Family Court to people with whom the Hinchcliffes associated.  This allegation did not expand the scope of the conduct that the Hinchcliffes had made the subject of complaint.

43                  The complaint falls to be read in the context of advice by an officer of the Attorney-General’s Department (in the letter of 31 March 1999) to provide information and evidence to the DPP (who, it seems, suggested that this be given to the AFP instead) and advice given by Mr Curry to write to the AFP outlining the complaint.  There is nothing in the material before the Court that would show that the Hinchcliffes sought to expand the ambit of their complaint beyond that which is contained in the letter of 28 April 1999.  On the contrary, the Hinchcliffes’ letters of 12 May 1999 to the Family Court and 25 May 1999 to the AFP tended to confirm that their focus was on the disclosure by Ms Walker to Mr Foale of matters in the John Hinchcliffe proceedings for use in the Amanda Hinchcliffe proceedings. 

44                  It follows from this, I think, that the submission made by counsel for the Hinchcliffes that there was no real performance by the AFP of its duty fails. 

45                  Even if, for present purposes, Mr Hinchcliffe’s account of his discussion with Federal Agent Francis is preferred to that of Mr Francis, it does not carry this aspect of the matter much further.  It shows merely that the Hinchcliffes offered to provide Federal Agent Francis with a list of witnesses “to whom we are aware that statements had been made to” by Ms Walker and Mr Foale.  Having regard to the terms of the complaint, these statements either concerned the principal disclosure by Ms Walker to Mr Foale, or the ancillary matters mentioned in the complaint, including in paragraph 10.  At most, Mr Hinchcliffe can be taken as indicating to Federal Agent Francis that he believed that the Hinchcliffes had witnesses who were able to support their complaint.

46                  The undisputed evidence is that the AFP took action on the Hinchcliffes’ complaint, by requesting them to provide documentation for evaluation, by having Federal Agent Francis attend the Family Court to obtain copies of the documents which the Hinchcliffes said were relevant, and by seeking advice from the DPP.  The advice that the DPP gave the AFP was considered and thorough.  The AFP were entitled to take it into account in determining what further action should be taken on the complaint.  There is nothing in the material before the Court to justify the allegation that the AFP did not give real consideration to the complaint.  In this circumstance, a writ of mandamus cannot lie:  see R v The War Pensions Entitlement Appeal Tribunal; Ex parte Bott (1933) 50 CLR 228 (“Bott”) at 242-243.  There is nothing in this material to warrant the proposition that the respondents have failed to fulfil any public duty owed by them in connection with the receipt of the Hinchcliffes’ complaint.

47                  In any event, if (as Mr Hinchcliffe asserted in his affidavit of 25 January 2001) the Hinchcliffes intended to have the AFP consider a complaint that “information and allegations which must have had their source in the family court documents had become widely known amongst persons with whom my wife and I associated”, then the complaint they in fact made did not make “a sufficient demand or request” to support an application for mandamus on this basis:  cf Bott at 242.  Before mandamus can lie, the Hinchcliffes must have made a sufficient demand or request for the AFP to consider a complaint about the dissemination of the Family Court material by Ms Walker and Mr Foale to the Hinchcliffes’ associates; and the AFP must have refused to consider that demand or request.  For the reasons already given, the AFP and the DPP properly read the complaint as a complaint about the disclosure of the material by Ms Walker to Mr Foale for use in proceedings in which he was involved.  The AFP’s letter of 1 October 1999 was a refusal to consider further a complaint about this matter. 

48                  In their amended statement of claim, the Hinchcliffes also alleged that the AFP refused to take further action on their complaint because it was the AFP’s policy or practice not to investigate complaints by litigants in family law proceedings alleging contravention of s 121 of the Act.  The basis for this allegation was said to be a statement made at paragraph 21 of Mr Hinchcliffe’s affidavit of 22 November 1999, and the inferences to be drawn from the way in which the AFP handled the complaint. 

49                  The statement made by Mr Hinchcliffe in his affidavit is unsupported by any other material before the Court.  Even if it were true, the action taken by the AFP in response to the complaint belies the existence of any such policy or practice.  The AFP’s effort to obtain documentation of the complaint and its request for the DPP’s advice are at odds with any supposed policy.  I reject the Hinchcliffe’s submission about the AFP’s policy and practice. 

construction of s 121 of the family law act

50                  Even if Mr and Mrs Hinchcliffes’ allegation that the AFP failed to fulfil their legal duty was tenable, the grant of any relief would, so it seems to me, be futile, since the complaint they made to the AFP did not disclose any offence against s 121 of the Act.  In other words, the decision to proceed no further with the investigation was inevitable.  A court would not grant mandamus in this circumstance. 

51                  Section 121 of the Act relevantly provided as follows:

(1)     A person who publishes in a newspaper or periodical publication or by radio broadcast or television, or otherwise disseminates to the public or to a section of the public by any means, any account of any proceedings, or of any part of any proceedings, under this Act that identifies:

(a)    a party to the proceedings;

(b)    a person who is related to, or associated with, a party to the proceedings or is, or is alleged to be, in any other way concerned in the matter to which the proceedings relate; or

(c)     a witness in the proceedings;

is guilty of an offence punishable, upon conviction by imprisonment for a period not exceeding one year.

…

(9)    The preceding provisions of this section do not apply to or in relation to:

(a)        the communication, to persons concerned in proceedings in any court, of any pleading, transcript of evidence or other document for use in connection with those proceedings;

…

The effect of s 121(9)(a) is that the communication by Ms Walker to Mr Foale (who was a person concerned in proceedings in a court) of documents and other material for use in connection with these proceedings did not constitute a contravention of s 121(1) of the Act.  Counsel for Mr and Mrs Hinchcliffe did not dispute that this was the effect of s 121(9)(a).  Rather, he contended that “it is arguable that the wider dissemination to friends and associates of the Hinchcliffes complained of was to a section of the public within the meaning of … s 121”.

52                  I do not think that any offence is made out on this basis, even if the complaint is read as including the allegation that Ms Walker and Mr Foale have knowingly made false statements about Mr or Mrs Hinchcliffe to people with whom the Hinchcliffes associate; and the statements repeat what is contained in documents filed in the John Hinchcliffe proceedings.  As the respondents noted, there are a number of elements of s 121(1) which must be satisfied before an offence can be made out. 

53                  First, before s 121(1) can be contravened, there must be a dissemination of an account of proceedings, or part of them, under the Act.  I accept, as the respondents submitted, that an “account”, for this purpose, is a narrative, description, retelling, or recital of such proceedings.  Paragraph 10 of the letter of complaint does not allege that anyone has given an account in this sense.  Rather, the most the complaint alleges is that “fabrications and lies” contained in documents in the John Hinchcliffe proceedings were communicated by Ms Walker, her solicitor, and Mr Foale to associates of the Hinchcliffes.  There is no account of proceedings merely because some allegations made in the proceedings are reiterated outside the Court.  Before there can be an account of proceedings in the relevant sense, a communication must purport to narrate, describe, retell or recite something that has happened in the proceedings, or something about the proceedings.  Even if Ms Walker and Mr Foale were repeating untruths about the Hinchcliffes, which were untruths asserted in the John Hinchcliffe proceedings, this would not amount to an account of these proceedings.

54                  Subsection 121(1) also requires that there be a dissemination of an account of proceedings or part of them “to the public or to a section of the public”.  In Re Edelsten; Ex parte Donnelly (1988) 18 FCR 434, Morling J considered what was intended by the reference to “the public” in s 121(1) of the Act.  His Honour said at 436:

[I]n the context of s 121 ‘disseminates to the public’ should be taken as a reference to widespread communication with the aim of reaching a wide audience.  It cannot have been intended by the legislature that the restriction on dissemination should apply, for example, to conversations between a party to Family Court proceedings and a close personal friend.

55                  In order to overcome the respondents’ submission that communications to associates of the Hinchcliffes could not amount to the dissemination to a “section of the public”, counsel for Mr and Mrs Hinchcliffe referred to Corporate Affairs Commission (South Australia) v Australian Central Credit Union (1985) 157 CLR 201 (“ACCU”) at 208-209 in support of a submission that “section of the public” “means the same in s 121 as it did in the Companies Act 1961”. 

56                  The decision in ACCU does not, I think, assist the Hinchcliffes.  First, I note that the central question (whether the members of the ACCU constituted a “section of the public” for the purposes of s 5(4) of the Companies (South Australia) Code) arose in a very different legislative context from this case.  To the extent that the remarks in ACCU are apposite here, they tend against the Hinchcliffes.  In a joint judgment, Mason ACJ, Wilson, Deane and Dawson JJ observed at 208:

For some purposes and in some circumstances, each citizen is a member of the public and any group of persons can constitute a section of the public.  For other purposes and in other circumstances, the same person or the same group can be seen as identified by some special characteristic which isolates him or them in a private capacity and places him or them in a position of contrast with a member or section of the public.

In the same case, Brennan J said, at 213:

When the offerees’ special interest is substantially greater than or substantially different from the interest which the offerees would have had in the subject-matter of the offer if the antecedent relationship [with the offeror] did not exist, the ground for distinguishing them from a section of the public is substantial.  In my opinion, the criterion which distinguishes an offer to a group of offerees who are not a section of the public from an offer to a section of the public is this: whether the offerees are members of a group who, by reason of their antecedent relationship with the offeror, have an interest in the subject-matter of the offer substantially greater than or substantially different from the interest which others who do not have that relationship would have in the subject-matter of the offer. 

57                  In this case, those to whom Ms Walker and Mr Foale have allegedly communicated the false statements have one common characteristic: they are people with whom Mr and Mrs Hinchcliffe associate.  This, it seems to me, identifies the communication as being essentially personal, i.e., as being made from Ms Walker or Mr Foale to associates of the Hinchcliffes in a private way.  If adapted to the present context, Brennan J’s reasoning in ACCU assists in exposing the nature of the audience to whom the communication is made.  The allegation assumes that, because associates of the Hinchcliffes have an antecedent relationship with the Hinchcliffes, they have a special interest in the subject-matter of the communication which is substantially greater than, or substantially different from, the interest of members of the public generally who do not have such a relationship.  It is not to the point that there is no allegation that Ms Walker or Mr Foale had an antecedent relationship with these people: Brennan J’s references in ACCU to offerors and offerees are not relevant in the present connection.

58                  On any view, the Hinchcliffes’ complaint does not allege the commission of any offence against s 121(1) of the Act.  Even if a basis might be found upon which mandamus might lie, relief of this kind would be futile and would not therefore be granted.

summary

59                  Accordingly, I accept the respondents’ submissions that:

(1)    they are not under a duty of the kind pleaded in paragraph 3 of the amended statement of claim;

(2)    there is no tenable basis shown for the allegation that they are in breach of any duty, the performance of which might be compelled by mandamus; and

(3)    there is no tenable basis for the proposition that the complaint discloses any offence against s 121(1) of the Act.

60                  For these reasons, I accept that the proceeding instituted by the Hinchcliffes in the High Court and remitted to this Court is bound to fail, and should be dismissed pursuant to O 20, r 2(1) of the Rules as an abuse of process (in the sense explained in Walton v Gardiner (1993) 177 CLR 378 at 393), alternatively because it discloses no reasonable cause of action. 

61                  This conclusion does not diminish the considerable assistance that has been provided by counsel who appeared, pro bono, for Mr and Mrs Hinchcliffe.  Members of the profession who, pursuant to the pro bono scheme, undertake without the expectation of reward to appear as solicitor or counsel in the preparation or presentation of a case well serve the interests of justice.  The Court and litigants in person are indebted to them.

Associate:

Dated:              10 December 2001